Lafferty v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 15 . The Court DENIES Lafferty's motion for summary judgment 10 ; GRANTS the Commissioner's motion for summary judgment 12 ; AFFIRMS the Commissioner's decision; and DISMISSES this case WITH PREJUDICE. The Court DIRECTS that this case be STRICKEN from the active docket of this Court. The Court DIRECTS the Clerk of Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/3/2017. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENNETH ROBERT LAFFERTY, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 1:16CV15
(Judge Keeley)

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]
On February 2, 2016, the plaintiff, Kenneth Robert Lafferty,
Jr. (“Lafferty”), filed a complaint seeking review of the adverse
decision of the defendant, Carolyn Colvin, Acting Commissioner of
Social Security (“the Commissioner”) (Dkt. No. 1). On September 22,
2016, the Honorable Robert W. Trumble, United States Magistrate
Judge, issued a Report and Recommendation (“R&R”), recommending
that the Court deny Lafferty’s motion for summary judgment, grant
the

Commissioner’s

motion

for

summary

judgment,

affirm

the

Commissioner’s decision, and dismiss this case with prejudice (Dkt.
No. 15). Lafferty filed timely objections to the R&R (Dkt. No. 16).
After
objections,

considering
the

Court

the
ADOPTS

record,
the

R&R

as

well

(Dkt.

as
No.

Lafferty’s
15),

DENIES

Lafferty’s motion for summary judgment (Dkt. No. 10), GRANTS the
Commissioner’s motion for summary judgment (Dkt. No. 12), AFFIRMS

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

the

Commissioner’s

decision,

and

DISMISSES

this

case

WITH

PREJUDICE.
I. BACKGROUND
The Court has jurisdiction over this case pursuant to 42
U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). As part of its review
of the R&R, it incorporates by reference Magistrate Judge Trumble’s
thorough recitation of the facts surrounding Lafferty’s disability
insurance benefits (“DIB”) claim, as well as his articulation of
the five-step evaluation process (Dkt. No. 15 at 3-16).
Lafferty was born on August 30, 1980, and was 32 years old at
the time he filed his DIB claim on October 11, 2012, alleging a
disability onset date on October 8, 2012 (Dkt. No. 7-3 at 2). At
the time, he was unemployed, but had previously worked as a youth
service worker, car detailer, fast food worker, and telemarketer
(Dkt. No. 7-2 at 74). Lafferty alleged that the following physical
limitations prevent him from working: arthritis in both hips and
lower back pain resulting from a leg length discrepancy (Dkt. No.
7-6 at 5). Although Lafferty did not submit any medical records
pre-dating his alleged onset date, the record reflects that he “had
bilateral hip surgery and had pin insertion due to dysplasia [of]
both hip[s] at the age of 14" (Dkt. No. 7-7 at 9).
2

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

On January 30, 2013, at the first physical examination of
record, Lafferty reported that he had not had an X-ray, physical
therapy, or orthopaedic consultation since the age of 18, although
his

hip

and

back

pain

had

persisted

since

that

time.

Id.

Thereafter, on March 12, 2013, Lafferty presented to the emergency
department

at

United

Hospital

Center

(“UHC”),

complaining

of

exacerbation of his chronic hip pain. Id. at 15. He was diagnosed
with chronic hip pain and prescribed Ultram and ibuprofen. Id. at
17-18. On June 5, 2014, Lafferty presented for an appointment at
West Virginia University Healthcare, where he complained that his
“pain has significantly worsened over the last 6 years.” Id. at 65.
After X-rays and examination, Lafferty was advised that “hip
replacement surgery is inevitable,” but he opted not to pursue it.
Id. at 66.
The first mental health treatment of record occurred on
November 5, 2013, when Lafferty returned to UHC and reported
hallucinations and thoughts of self-harm. Id.

at 44. He was

voluntarily admitted for inpatient medication and counseling until
November 11, 2013, at which time his mood had stabilized and he
denied suicidal thoughts. Id. at 21. He presented for outpatient

3

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treatment at the Community Mental Health Center on March 20, 2014,
and July 1, 2014. Id. at 61, 69.
The Commissioner denied Lafferty’s claim at both the initial
and reconsideration levels (Dkt. No. 1 at 1). Upon Lafferty’s
request, Administrative Law Judge George A. Mills III (“ALJ”) held
a

hearing

on

September

17,

2014,

following

which

he

denied

Lafferty’s claim (Dkt. No. 7-2 at 18, 29). Lafferty appealed the
ALJ’s decision to the Appeals Council, which declined review (Dkt.
No. 1 at 2).
Thereafter, on February 2, 2016, Lafferty filed suit in this
Court,

seeking

reversal

of

the

Commissioner’s

decision.

Id.

Lafferty has argued that the Commissioner committed reversible
error in the three following respects: (1) the ALJ used improper
reasons to discount the employability opinion of psychologist
Rodney McCullough, MA (“McCullough”), to whom Lafferty’s attorney
had referred him for a psychological evaluation;1 (2) the ALJ was
not clear about the evidence on which he relied; and (3) the ALJ’s

1

Lafferty met with McCullough on July 11 and August 14, 2014.
During those meetings, McCullough administered the MCMI-III to
assess Lafferty’s emotional and behavioral disturbances. Based on
the MCMI-III results, as well as Lafferty’s prior diagnoses,
McCullough concluded that Lafferty could not work any job without
risking significant decompensation (Dkt. No. 7-7 at 78-81).
4

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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

credibility determination held Lafferty to an inappropriately high
standard and wrongfully speculated on his motivation to work (Dkt.
No. 11 at 5).
In the R&R, Magistrate Judge Trumble concluded that Lafferty’s
contentions lack merit (Dkt. No. 15). First, he found that the ALJ
had properly evaluated and weighed McCullough’s opinion. Id. at 21.
Second,

he

found

that

the

ALJ

had

adequately

explained

his

reasoning and the evidence on which he had relied. Id. at 27.
Finally, he concluded that the ALJ had properly assessed Lafferty’s
credibility

and

supported

his

determination

with

substantial

evidence. Id. at 37. In his objections, relying chiefly on the
Court’s recent decision in Forquer v. Colvin, 1:15cv57, 2016 WL
4250364 (N.D.W. Va. Aug. 11, 2016), Lafferty argues that Magistrate
Judge Trumble’s recommendation improperly permits an ALJ to reject
all

psychological

opinions

and

formulate

his

own

medical

interpretation of the evidence (Dkt. No. 16 at 1).
II. APPLICABLE LAW
A.

Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court must review

de novo any portion of the magistrate judge’s recommendation to
which

objection

is

timely

made.
5

As

to

those

portions

of

a

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recommendation to which no objection is made, a magistrate judge’s
findings and recommendation will be upheld unless they are “clearly
erroneous.” See Diamond v. Colonial Life & Accident Ins. Co.,
416

F.3d

310,

315

(4th

Cir.

2005).

Because

Lafferty

filed

objections, this Court will review de novo those portions of the
R&R to which he has objected.
B.

Judicial Review of an ALJ’s Decision
The question presented is not whether Lafferty is disabled.

See Mayer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (citing
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). Judicial review
of a final decision regarding disability benefits is limited to
determining whether the ALJ’s findings are supported by substantial
evidence, and whether the ALJ correctly applied the law. See 42
U.S.C. § 405(g); Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528
(4th Cir. 1998). It is the duty of the ALJ, not the Court, to make
findings of fact and resolve disputed evidence. King v. Califano,
599 F.2d 597, 599 (4th Cir. 1979).
Substantial evidence is that which a “reasonable mind might
accept as adequate to support a conclusion.” Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971) (internal quotation omitted)). That “two
6

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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

inconsistent conclusions” may be drawn “from the evidence does not
prevent an administrative agency’s findings from being supported by
substantial evidence.” Sec’y of Labor v. Mut. Mining, Inc., 80 F.3d
110, 113 (4th Cir. 1996) (quoting Conolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966) (internal quotation omitted)).
“An ALJ may not select and discuss only that evidence that
favors his ultimate conclusion, but must articulate, at some
minimum level, his analysis of the evidence to allow the appellate
court to trace the path of his reasoning. An ALJ's failure to
consider an entire line of evidence falls below the minimal level
. . . .” Diaz v. Charter, 55 F.3d 300, 307 (7th Cir. 1995)
(internal citation omitted). The Court must be able to “track the
ALJ’s

reasoning

and

be

assured

that

the

ALJ

considered

the

important evidence.” Id. at 308 (quoting Green v. Shalala, 51 F.3d
96, 101 (7th Cir. 1995)).
III. DISCUSSION
A.

Mental Health Evidence
Lafferty contends that the Court must remand this case because

the ALJ discounted McCullough’s opinion for “reasons not found in
the

Commissioner’s

regulations”

(Dkt.

No.

11

at

5).

More

particularly, Lafferty alleges that the ALJ 1) should not have
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stressed that McCullough’s opinion was procured by counsel, 2)
manufactured an inconsistency in McCullough’s report, and 3) failed
to account for Lafferty’s schizo-affective disorder. Id. at 6-9.
Lafferty also argues that, despite giving little weight to all
psychological opinions, the ALJ failed to adequately explain what
evidence he did rely on when he gave “great weight” to the Global
Assessment of Functioning (“GAF”) scores. Id. at 10-16.
In his R&R, Magistrate Judge Trumble concluded that the ALJ
had

weighed

the

appropriate

factors

and

provided

substantial

evidence to support his decision to accord McCullough’s opinion
little

weight.

He

also

concluded

that

the

ALJ

had

provided

sufficient support for his reliance on Lafferty’s GAF scores (Dkt.
No. 15 at 24-31).
In his objections, Lafferty contends that Magistrate Judge
Trumble

clearly

erred

by

formulating

his

own

“post-hoc

rationalization” of McCullough’s findings (Dkt. No. 16 at 3). He
also argues that both the ALJ and Magistrate Judge Trumble ignored
certain evidence from Lafferty’s treatment notes and improperly
relied on Lafferty’s activities of daily living. Id.

8

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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

1.

Applicable Law

If the claimant’s severe mental impairments neither meet nor
exceed the severity of a listed impairment, as was the case here,2
the

ALJ

then

capacity

must

(“RFC”),

assess
20

the

C.F.R.

claimant’s

§

residual

404.1520(d)(3),

by

functional
considering

medical opinions3 “along with the rest of the relevant evidence” in
a case.

20 C.F.R. § 404.1527(b). With the exception of a treating

physician’s opinion,4 the ALJ should consider the following factors
in

deciding

examining

what

weight

relationship;

to

give

a

medical

(2)

the

treatment

opinion:

(1)

the

relationship;

(3)

supportability; (4) consistency; (5) specialization; and (6) other
factors. Id.

2

Lafferty has not challenged the ALJ’s step-three
determination that his mental impairments are not at least
equivalent to a listed impairment (Dkt. No. 7-2 at 20-21).
3

“Medical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of
your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).
4

A treating physician’s opinion is entitled to controlling
weight so long as it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is consistent
with the other evidence of record. 20 C.F.R. § 404.1527(c)(2);
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
9

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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

The ALJ’s determination as to the weight to be assigned to a
medical opinion “generally will not be disturbed absent some
indication that the ALJ has dredged up ‘specious inconsistencies,’
or has failed to give a sufficient reason for the weight afforded
a particular opinion.” Dunn v. Colvin, 607 F. App’x 264, 267 (4th
Cir. 2015) (internal citations omitted). The ALJ must reach a
conclusion that appears rational to the Court. Id. at 266. Of
course, an ALJ cannot “succumb to the temptation to play doctor”
and make his own medical assessment. Schmidt v. Sullivan, 914 F.2d
117, 118 (7th Cir. 1990); see also Wilson v. Califano, 617 F.2d
1050,

1053-54

(4th

Cir.

1980)

(holding

that

an

ALJ

may

not

“dispense with vocational expert testimony in favor of his own
experience”).
Although the ALJ may decline to give an opinion weight, it is
for the Court to determine whether substantial evidence supports
his decision. See Russell v. Barnhart, 58 Fed. App’x 25, 29–30 (4th
Cir. 2003) (finding that the ALJ did not supplant medical opinions
with his own analysis when the ALJ relied on the claimant’s
testimony and statements and the assessments of various mental
treatment sources); but see Frank v. Barnhart, 326 F.3d 618, 622

10

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(5th Cir. 2003) (noting that the ALJ had impermissibly drawn his
own medical conclusions from the data without an expert’s help).
2.

ALJ’s Decision

With regard to Lafferty’s mental health, the ALJ discussed and
summarized all of the evidence in the record. When Lafferty
presented for a consultative examination with Dr. Himanshu Paliwal
on January 30, 2013, he was “well dressed, well groomed, keeps good
eye contact, thought process intact, no hallucinations or suicidal
ideation, mood and affect are appropriate” (Dkt. No. 7-2 at 24). On
November 5, 2013, Lafferty voluntarily admitted himself to United
Hospital Center for suicidal ideations. There, the “diagnostic
impression

upon

admission

was

marijuana

abuse/dependence

and

bipolar disorder with psychotic features and substance induced mood
disorder, with a [GAF] score of 25 to 30.” Id. at 24. After
medication

adjustment

and

psychotherapuetic

intervention,

Lafferty’s mood stabilized and he was discharged. Id.
Lafferty thereafter presented to Community Mental Health
Center for continued treatment, and in March 2014, reported that
his medication was helping with previously reported paranoia and
hallucinations. “At that time, the assessment was major depressive
disorder (recurrent) with a GAF of 51-60, which is reflective of
11

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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

moderate symptoms or moderate difficulties in social, occupational,
or school functioning.” Id. at 24-25.
In April 2014, the assessment of Lafferty had changed to
“anxiety disorder” and “schizoaffective disorder with a continued
GAF

of

51-60.”

Id.

at

25.

In

addition,

the

ALJ

noted

that

Lafferty’s most recent review assessment in July 2014 reflected a
number of reported severe and moderate symptoms, and included a
functioning assessment of “mild dysfunction in Domains I and II,
extreme dysfunction in Domain III and [m]arked dysfunction in
Domain IV.” The ALJ went on to explain:
Notably, the claimant was living in a van and reported
arthritic pain in his pelvis an[d] thigh regions.
However, upon mental status examination, he displayed no
abnormal psychomotor activity, spoke with a normal rate
of speech, and his thought process appeared to be logical
and goal-directed. While the claimant reported that he
was still having delusions, he reported that the
medication was helping with hallucinations and that they
were greatly less and he did not appear to be
experiencing delusions during [the] interview. Further
his short term memory appeared to be intact.
Id.

At

that

time,

Lafferty’s

“assessment

was

schizoaffective

disorder and generalized anxiety disorder with a continued GAF of
51-60.” Id.
As the ALJ noted, the record provided the psychological
evaluation

conducted

by

McCullough,
12

which

was

obtained

upon

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attorney referral. McCullough concluded that, “even [] a low
stress, low productivity quota job[] will not only increase his
delusional and hallucinatory symptoms but will mostly [sic] likely
led [sic] to a period of significant decompensation” (Dkt. Nos. 7-2
at 25; 7-7 at 80). The ALJ gave little weight to this opinion on
employability because “McCullough reported no more than moderate
symptoms upon his examination.” On the contrary, the ALJ reasoned,
“the

claimant’s

limited

treatment

history

and

only

moderate

limitations with relation to GAF scores and []mild dysfunction in
domains I and II found by his treating mental health providers
indicate that” Lafferty’s symptoms are not as severe as alleged.
Id. at 25.
Lafferty makes much of the ALJ’s failure to define these
domains (Dkt. No. 16 at 3). In his R&R, Magistrate Judge Trumble
noted that the domains are defined in the CFR and thus concluded
that they need not be defined by the ALJ (Dkt. No. 15 at 23 n.8).
In the Court’s view, it seems unlikely that Lafferty’s mental
health providers would have used definitions from Social Security
regulations in their treatment notes. But, even if they did not, it
is clear that the ALJ considered the extreme dysfunction in Domain
III and marked dysfunction in Domain IV (Dkt. No. 7-2 at 25). He
13

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also recounted and considered all of the symptoms and circumstances
reported by Lafferty during his mental health review. It is not
this Court’s role to reweigh conflicting evidence that the ALJ
clearly considered. Mut. Mining, Inc., 80 F.3d at 113.
The ALJ also gave little weight to state agency assessments
that found “no severe mental health impairments.” Id. at 27. At the
time of those assessments, Lafferty had not alleged a mental health
impairment; subsequently, however, he sought treatment at UHC and
Community Mental Health Center. Id.
The ALJ did give great weight to Lafferty’s GAF scores between
25 and 60 that are found throughout the record. He noted that they
“were assessed by [Lafferty’s] treat[ing] mental health providers,
who[]

would

have

a

significant

insight

into

the

claimant’s

functional abilities.” Id. at 26. Moreover, “the scores indicate
that

despite

functional

an

exacerbation

abilities

have

in

symptoms,

remained

at

a

[]

the

moderate

claimant’s
level

with

treatment.” Id.
3.

Analysis
a.

McCullough’s Opinion

Lafferty argues that the ALJ “manufactured an inconsistency”
in McCullough’s report in order to support discrediting it (Dkt.
14

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No. 11 at 9). The R&R, however, concluded that “the ALJ followed
proper procedure” (Dkt. No. 15 at 24-26).5 Lafferty objects that,
in order to support the ALJ’s mischaracterization of McCullough’s
report, Magistrate Judge Trumble engaged in his own “post-hoc
rationalization” that McCullough documented “non-severe” findings
(Dkt. No. 16 at 3).
Absent from the record is any evidence that the ALJ dredged up
“specious inconsistencies” in McCullough’s report. Dunn, 607 F.
App’x at 267. Lafferty takes issue with the ALJ’s note that
McCullough

only

observed

“moderate”

symptoms,

and

likewise

criticizes the R&R for calling these symptoms “non-severe” (Dkt.
Nos. 11 at 9; 16 at 3). Regardless of the adjectives selected to
describe Lafferty’s symptoms during the examination performed by
McCullough, there can be no dispute that McCullough concluded his
observation of Lafferty’s symptoms with the following description:
During my interactions with Mr. Lafferty I noted a
moderate degree of suspiciousness. He was not actively
hallucinatory on either of the dates I spoke with him. .
. . I found him easily derailed at times and he showed a
5

Lafferty appears to abandon his previous arguments that the
ALJ improperly considered McCullough’s status as an attorney
referral. He does not object to the R&R’s conclusion that, as
evidence of the “nature of the relationship between the opining
health care provider and the claimant,” this is an appropriate
factor for the ALJ to consider (Dkt. No. 15 at 24).
15

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degree of circumstantiality in his responses to this
examiner.
(Dkt.

No.

7-7

at

80).

The

ALJ

found

that

these

personal

observations failed to support McCullough’s ultimate opinion, based
on an MCMI-III assessment and Lafferty’s prior diagnoses, that “it
[was] quite likely that the stress of sustaining employment, even
[] a low stress, low productivity quota job[] will not only
increase his delusional and hallucinatory symptoms but will mostly
[sic] likely led [sic] to a period of significant decompensation”
(Dkt. Nos. 7-2 at 25; 7-7 at 80).
Importantly, the ALJ did not discount McCullough’s conclusion
simply because he disagreed with its medical interpretation, and
decided to “play doctor.” Schmidt, 914 F.2d at 118. Rather, he
found the conclusion that any employment would lead “to a period of
significant decompensation” to be inconsistent with McCullough’s
own

observations,

as

well

as

other

evidence

in

the

record,

including Lafferty’s “limited treatment history and only moderate
limitations with relation to GAF scores and []mild dysfunction in
domains I and II found by his treating mental health providers”
(Dkt. No. 7-2 at 25). The ALJ is, in fact, required to “consider
the medical opinions . . . together with the rest of the relevant

16

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evidence.” 20 C.F.R. § 404.1527(b). Therefore, the Court ADOPTS the
R&R’s conclusion that the ALJ followed the proper procedure and
relied on substantial evidence to support the weight that he gave
to McCullough’s opinion (Dkt. No. 15 at 27).
b.
Lafferty

Evidence Relied Upon
contends

that,

although

the

ALJ

discounted

all

psychological opinions, he was not clear about the evidence on
which he relied when he allegedly formulated his own analysis of
the medical evidence (Dkt. Nos. 11 at 10-16; 16 at 3). Contrary to
these

arguments,

however,

the

ALJ’s

decision

to

discount

psychological opinions and reach a contrary conclusion does not
equate to improperly “rel[ying] on his own analysis of . . .
Lafferty’s medical signs and symptoms” (Dkt. No. 16 at 2, 4).
Given

the

ALJ’s

thorough

discussion

of

Lafferty’s

treatment

history, it is clear that he did not “supplant[] the expert medical
opinions . . . based only on GAF scores” (Dkt. No. 16 at 4-5).
Lafferty’s contention that this Court’s recent decision in
Forquer v. Colvin dictates a remand is unavailing. In Forquer, the
ALJ was presented with four mental health opinions - those of an
attorney referral, a treating physician, and two state consultants.
Ultimately, he discounted the opinions of the attorney referral and
17

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treating physician, which included low GAF scores, by “relying on
[the claimant’s] activities of daily living.” Forquer, 2016 WL
4250364, at *7. In addition, citing to “the evidence of record,
including the mental health records and the claimant’s activities,”
he declined to rely on the state consultants, neither of which had
reported a severe impairment. Id. at *8. The Court concluded that,
although the ALJ had cited to “the evidence of record,” he had
relied heavily on only one special factor, the activities of daily
living, and had failed to make clear whether he had relied on any
additional evidence. Because the ALJ had “failed to sufficiently
explain how he derived his opinion,” the Court remanded the case
for further consideration. Id.
Unlike the ALJ in Forquer, the ALJ in this case met his burden
by considering all the evidence and providing clear reasoning for
his decision. An ALJ need not credit “one of the medical opinions”
in order to support a decision; “[r]ather, what the ALJ must
consider is the evidence of record, which ‘may contain medical
opinions.’” Id. at *6 (quoting 20 C.F.R. § 404.1527(a)(2)). After
discounting

McCullough’s

opinion

on

employability,

the

ALJ

supported his RFC determination by pointing to Lafferty’s “limited
treatment history and only moderate limitations with relation to
18

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GAF scores and []mild dysfunction in domains I and II found by his
treating

mental

health

providers”

(Dkt.

No.

7-2

at

25).

In

addition, the ALJ explained the weight he gave to the various GAF
scores. See Nienaber v. Colvin, No. C13-1216-RSM, 2014 WL 910203,
at *4 (W.D. Wash. Mar. 7, 2014) (discussing that a GAF score needs
supporting evidence to be given much weight). After noting that
they were assigned by Lafferty’s treating mental health providers,
he compared those scores to Lafferty’s treatment history, reasoning
that “the scores indicate that despite an exacerbation in symptoms,
[Lafferty’s] functional abilities have remained at a moderate level
with treatment.” Id. at 26. Therefore, the ALJ supported his
conclusion with substantial evidence.
Lafferty’s arguments amount to a request that this Court
reweigh the same evidence considered by the ALJ and find that he
reached an incorrect conclusion. However, the “possibility of
drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by
substantial

evidence.”

Mut.

Mining,

Inc.,

80

F.3d

at

113.

Therefore, finding substantial evidence for the ALJ’s finding, the
Court ADOPTS the conclusion in the R&R that the ALJ properly

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LAFFERTY V. COLVIN

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

considered Lafferty’s mental health and supported his decisions
with substantial evidence (Dkt. No. 15 at 27, 31).
B.

Credibility Determination
Lafferty argues that the Court must remand this case because

the ALJ erred when assessing his credibility (Dkt. No. 11 at 12).
He alleged that the ALJ created an arbitrary standard by suggesting
that his activities of daily living are “not consistent with a
totally disabled individual.” Id. at 13. He further contends that,
given

his

eligibility

to

seek

DIB,

the

ALJ

should

not

have

speculated on his motivation to work. Id. at 14. The R&R concluded,
however, that the ALJ’s credibility determination was supported by
substantial evidence (Dkt. No. 15 at 37). Lafferty objects that,
although the ALJ may have used the appropriate factors to assess
credibility, his analysis was tainted by his prior decision to
discount McCullough’s opinion (Dkt. No. 16 at 4). Lafferty also
reasserts his arguments concerning his activities of daily living
and work ethic. Id. at 3-4.
1.

Applicable Law

An ALJ uses a two-step process when determining whether a
person is disabled by pain or other symptoms. Craig, 76 F.3d at
594. First, objective medical evidence must exist showing a medical
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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

impairment

resulting

from

anatomical,

physiological,

or

psychological abnormalities that “could reasonably be expected to
produce the pain or other symptoms alleged.” Id. (quoting 20 C.F.R.
§ 416.929(b) (2011); 20 C.F.R. § 404.1529(b) (2011)); see also
Social Security Ruling 96-7p, 1996 WL 374186, at *2 (July 2, 1996)
[hereinafter SSR 96-7p].
After the claimant makes this “threshold showing,” the ALJ
must next evaluate the credibility of the claimant regarding his
subjective symptoms. SSR 96-7p, 1996 WL 374186, at *2. The ALJ must
assess the intensity, persistence, and limiting effects of the
claimant’s symptoms “to determine the extent to which the symptoms
limit the individual’s ability to do basic work activities.” Id. If
the claimant’s statements about the intensity, persistence, or
functionally

limiting

effects

of

pain

or

symptoms

are

unsubstantiated by objective medical evidence, the ALJ must “make
a finding on the credibility of those statements based on the
consideration of the entire case record,” including the medical
signs and laboratory findings, the claimant’s statements, any
statements

by

medical

professionals,

evidence. Id.

21

and

any

other

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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

When the ALJ needs additional information to assess the
claimant’s credibility, he must “make every reasonable effort to
obtain

available

credibility

of

information

the

that

individual’s

could

shed

statements”

and

light

on

consider,

the
in

addition to objective medical evidence, the following:
1.

The individual’s daily activities;

2.

The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;

3.

Factors
that
symptoms;

4.

The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken
to alleviate pain or other symptoms;

5.

Treatment, other than medication, the individual
receives or has received for relief of pain or
other symptoms;

6.

Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a
board); and

7.

Any other factors concerning the individual’s
functional limitations and restrictions due to pain
or other symptoms.

precipitate

and

aggravate

the

Id. at *3. Although the ALJ need not document specific findings as
to each factor, Wolfe v. Colvin, No. 3:14CV4, 2015 WL 401013, at *4
(N.D.W. Va. Jan. 28, 2015) (Groh, J.), his decision “must contain
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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

specific reasons for the finding on credibility, supported by
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2.
An

ALJ’s

credibility

determinations

are

“virtually

unreviewable.” Ryan v. Astrue, No. 5:09CV55, 2011 WL 541125, at *3
(N.D.W. Va. Feb. 8, 2011) (Stamp, J.) (quoting Darvishian v. Geren,
No. 08-1672, 2010 WL 5129870, at *9 (4th Cir. 2010)). Because the
ALJ observed the claimant’s demeanor during the administrative
hearing, his determination regarding credibility is to be given
great weight. Shively v. Heckler, 739 F.2d 987, 989 (7th Cir. 1997)
(internal citations omitted).
2.

Analysis

The R&R concluded that the ALJ supported his credibility
finding

with

substantial

evidence

by

examining

all

of

the

appropriate factors outlined by the Commissioner in SSR 96-7p (Dkt.
No. 15 at 33). In his objections, Lafferty concedes that “[t]he
ALJ’s use of such factors is likely correct.” He argues, however,
that the ALJ’s application of the appropriate factors is merely an
extension of his decision to discount all expert evidence and
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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

supplant it with his own interpretation, which is “based only on
GAF scores” (Dkt. No. 16 at 4).6 In addition, he argues that
“Lafferty’s alleged lack of motivation to work” is supported only
by the ALJ’s speculation, not any medical expert. Id.7
The ALJ found that Lafferty had made the “threshold” showing
that his “medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms” (Dkt. No. 7-2 at
23). He then went on to determine that Lafferty’s “statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.” Id. As Magistrate Judge
Trumble outlined in his R&R, the ALJ clearly considered all the
appropriate factors from SSR 96-7p to reach this determination. He
considered Lafferty’s daily activities,8 pain and other symptoms,

6

This portion of Lafferty’s objection is mooted by the
Court’s determinations regarding the ALJ’s reasoning on McCullough
and the mental health evidence.
7

To the extent that Lafferty seeks to rely on the credibility
analysis in Forquer, his reliance is misplaced. There, the Court
remanded the credibility determination so that the ALJ could
consider “evidence that contradicted his opinion on credibility”
that he had failed to address. 2016 WL 4250364, at *11. Lafferty
has pointed to no such evidence here. Rather, he simply disagrees
with the ALJ’s assessment.
8

Although Lafferty does not raise the argument again in his
objections, the Court agrees with the R&R’s conclusion that the ALJ
did not improperly “ratchet up” the standard by noting that
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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

medications, treatment and other measures, GAF scores, and work
history (Dkt. No. 15 at 33-36). In summary, the ALJ reached the
following conclusion:
The claimant has a treatment history, which fails to
demonstrate a condition of the degree of severity that
the claimant has alleged, and he has engaged in
significant daily activities. Further, a review of the
claimant’s work history shows that the claimant only has
four years of earning during his entire employment
history that is reflective of substantial gainful
activity levels of employment, which raises a question as
to whether the claimant’s continuing unemployment is
actually due to medical impairments.
(Dkt. No. 7-2 at 26).
Moreover, the Court is not persuaded by Lafferty’s objection
that the ALJ made a “legally insufficient,” and thus reversible,
error by “speculat[ing]” on his work history (Dkt. No. 16 at 4). As
Magistrate Judge Trumble discussed in the R&R, whether or not any
“medical expert opined as to such a conclusion,” id., it is
entirely appropriate for an ALJ to consider a claimant’s work
history when analyzing credibility. See, e.g., Buckner v. Astrue,
646 F.3d 549, 555-56 (8th Cir. 2011) (upholding ALJ decision that
Lafferty’s “activities of daily living are not consistent with a
totally disabled individual” (Dkt. No. 15 at 33 n.10). See Dunn,
607 F. App’x at 272 (affirming an ALJ decision reasoning that the
claimant “ha[d] not generally received the type of medical
treatment one would expect for a totally disabled individual”
(emphasis added)).
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ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

reasoned a claimant’s “sporadic work history prior to his alleged
disability date ‘indicates that he was not strongly motivated to
engage

in

productive

activity,’

which

weighed

against

his

credibility”); Campbell v. Astrue, 465 Fed. App’x 4 (2d Cir. 2012)
(unpublished summary order) (“[A] good work history may be deemed
probative of credibility.”).
Although

“Lafferty

worked

enough

to

obtain

disability

insurance coverage,” the ALJ nonetheless properly considered his
work history as a factor in the credibility analysis, and did not
commit legal error when he noted that, in light of Lafferty’s
limited income since 1998, he had “demonstrated little apparent
motivation, inclination, or need to sustain consistent employment”
(Dkt.

No.

7-2

at

26).

As

a

consequence,

Lafferty

has

not

demonstrated that the ALJ’s “virtually unreviewable” credibility
determination was not based on substantial evidence.
Therefore, for the reasons stated more fully in the R&R, the
Court ADOPTS Magistrate Judge Trumble’s conclusion that the ALJ’s
credibility determination was reached in accordance with the law
and supported by substantial evidence (Dkt. No. 15 at 37).

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]

IV. CONCLUSION
For the reasons discussed, as well as the reasons stated more
fully in the R&R, the Court:
1)

ADOPTS the R&R (Dkt. No. 15);

2)

DENIES Lafferty’s motion for summary judgment (Dkt. No.
10);

3)

GRANTS the Commissioner’s motion for summary judgment
(Dkt. No. 12);

4)

AFFIRMS the Commissioner’s decision; and

5)

DISMISSES this case WITH PREJUDICE.

The Court further DIRECTS that this case be STRICKEN from the
active docket of this Court.
It is so ORDERED.
The Court DIRECTS the Clerk of Court to transmit copies of
this Memorandum Opinion and Order to counsel of record, and to
enter a separate judgment order.
DATED: March 3, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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